RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          19 October 2005
      DOCKET NUMBER:  AR20050001720


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry Jr.             |     |Member               |
|     |Mr. Robert Rogers                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of the Board’s denial of his
request to correct his placement on the Retired List for years of service
to a medical separation.

2.  The applicant states that he had a hard time assembling his Department
of Veterans Affairs (VA) and military medical records when he was being
separated.  He believes that if he had those documents, he wouldn’t have
been separated due to his having a Department of the Army bar to
reenlistment imposed on him.

3.  The applicant provides:

      a.  a Summary of MOS/Medical Retention Board (MMRB) Proceedings,
dated 3 April 1995.  Those proceedings show that the applicant had a
permanent physical profile as a result of degenerative joint disease of his
lumbar spine and hypothyroidism.  That physical profile prohibited him from
wearing a rucksack, marching over two miles, lifting over 25 pounds, and
performing the two mile run.  However, those conditions did not prevent him
from performing the full range of physical tasks required of his military
occupational specialty in a worldwide field environment.  The MMRB
recommended retaining the applicant;

      b.  a letter dated 24 April 1999 which informed the applicant that a
DA bar to reenlistment had been imposed on him, provided him the reasons
the bar was imposed, and provided him with the options he had at that
point;

      c.  a physical profile dated 10 July 2000 which shows the applicant
had thyroid disorder, fatigue and chronic diarrhea.  The profile prohibited
him from driving more that 2 hours in a 24 hour period, working over 8
hours in a 24 hour period, and required that he work at his home station
while testing was being conducted on him; and

      d.  VA rating decisions which show that the applicant was awarded a
VA disability pension effective 1 November 2000, and that he is currently
rated 80 percent disabled by the VA.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20040005488 on 16 June 2005.

2.  The Performance section of the applicant’s Official Military Personnel
File (OMPF) shows that the applicant’s performance declined on the
Noncommissioned Officer Evaluation Report (NCOER) for the period ending
November 1996, and remained substandard for the remainder of his active
service.  Comments contained on this NCOER include:

      a.  Sometimes becomes absent minded or preoccupied with events not
related to task at hand;

      b.  Poor performance causes extra work for others;

      c.  On several documented occasions the applicant has failed to
demonstrate the appropriate knowledge and expertise in his job;

      d.  Does not motivate, challenge or develop his subordinates;

      e.  Does not communicate effectively with peers, superiors or
subordinates;

      f.  Does not take the responsibility for his actions;

      g.  Has shown no evidence of mentoring his subordinates;

      h.  Requires supervision to ensure the tasks are accomplished;

      i.  Lacks the supervisory skills of a senior NCO; and

      j.  Knowledge of general training regulations and policies could be
better.

3.  Army Regulation 635-40 stated that when a member is being processed for
separation for reasons other than physical disability (e.g., retirement,
resignation, reduction in force, relief from active duty, administrative
separation, discharge, etc.), his continued performance of duty (until he
is referred to the physical disability system for evaluation for
separation) creates a presumption that the member is fit for duty.  Such a
member should not be referred to a PEB unless his physical defects raise
substantial doubt that he is fit to continue to perform the duties of his
office, grade, rank or rating.

4.  Army Regulation 635-40 continued by stating that the presumption of
fitness may be overcome if the evidence established that:

      a.  the Soldier, in fact, was physically unable to adequately perform
the duties of his office, grade, rank or rating even though he was
improperly retained in that office, grade, rank or rating for a period of
time; or

      b.  acute, grave illness or injury or other deterioration of physical
condition, that occurred immediately prior to or coincidentally with the
Soldier’s separation for reasons other than physical disability, rendered
him unfit for further duty.

5.  Title 38, United States Code, permits the VA to award compensation for
disabilities which were incurred in or aggravated by active military
service.  However, an award of a VA rating does not establish error or
injustice in the Army not separating the individual for physical unfitness.
 An Army disability rating is intended to compensate an individual for
interruption of a military career after it has been determined that the
individual suffers from an impairment that disqualifies him or her from
further military service.  

6.  The VA, which has neither the authority nor the responsibility for
determining physical fitness for military service, awards disability
ratings to veterans for conditions that it determines were incurred during
military service and subsequently affect the individual’s employability.
Accordingly, it is not unusual for the VA to award a veteran a disability
rating when the veteran was not separated due to physical unfitness.
Furthermore, the VA can evaluate a veteran throughout his or her lifetime,
awarding and/or adjusting the percentage of disability of a condition based
upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant was separated as a result of a DA bar to
reenlistment, it is apparent from his NCOERs that he was barred from
reenlisting because of substandard performance which was unrelated to his
medical problems.

2.  The applicant’s records show that he had long-standing medical problems
while he was on active duty.  He was evaluated by an MMRB in 1995 which
determined that even with his permanent physical profile for degenerative
joint disease of his lumbar spine and hypothyroidism, his medical
conditions did not prevent him from performing the full range of physical
tasks required of his military occupational specialty in a worldwide field
environment.

3.  While the applicant was given another physical profile on 10 July 2000,
the only added diagnoses were fatigue and chronic diarrhea.  There is no
evidence or indication that either of these conditions were medically
disqualifying.

4.  Since the applicant was not determined medically disqualified prior to
him being notified that he was being separated due to his bar to
reenlistment, the presumption of fitness applies in this case.

5.  As for the applicant’s VA disability pension, as mentioned above, the
VA compensates a veteran based solely on the individual having a service
connected medical condition which impairs the veteran’s employability.  The
VA does not and can not make a determination on a Soldier’s fitness for
duty, which is the criteria required by regulation for the Army to either
place a Soldier on the Retired List for physical unfitness, or to discharge
a Soldier with disability severance pay.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___hof __  ____rr___  ___bje___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR20040005488 dated 16 June 2005.




            _________Barbara J. Ellis_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001720                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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